As Duffy's day in court draws closer, Harper loyalists should worry

iPolitics Insights

That giant pot-hole on the political highway in front of Stephen Harper is the trial of Mike Duffy.

Every so often, stories pop up about an imminent deal in the Wright/Duffy Affair that would head off the disgraced Senator’s April trial on 31 criminal charges laid against him by the RCMP.

The latest speculative piece came from the CBC. It was quickly and forcefully denied by Donald Bayne, Duffy’s criminal lawyer.

Put it in the bank; there is no deal or deal-making in the works from Duffy or his legal team. If his trial is cancelled or postponed, it will be because of actions taken by the Crown, or God, but not Duffy.

True, the suspended senator’s health could falter. True, the charges could be stayed, the trial might be postponed, or key witnesses could fight a subpoena to appear. But Duffy will never agree to walk away from this mess semi-corrupt. He will either be guilty or innocent, not trapped in some kind of reputational purgatory arranged by lawyers.

In criminal court, there is no such thing as telling the scenario, the whole scenario, and nothing but the scenario. Departure from the facts, no matter how important the person who is doing the departing, carries consequences. It’s called perjury.

Duffy has been the piñata of choice for so many different bashers that no one is seriously thinking that much new, let alone anything exculpatory, will be produced at his trial. As recently as this week in Winnipeg, Liberal leader Justin Trudeau was citing Harper’s Senate appointments, including Duffy, as proof of the PM’s lack of judgement.

He may be right.

But can you remember another case where everyone from the PM, the political opposition, to the media was so certain of someone’s guilt before their trial began?

A very basic fact has been forgotten in this much-ploughed scandal. Prime Minister Harper has managed to convict and punish his enemies without the nuisance of a hearing. They enter their trials with the aura of guilt already upon them.

I think that was the main grievance of Hugh Segal, the Tory Senator who last year retired early but not before putting two important things on the record. Both of them have a direct bearing on the Wright/Duffy Affair, and the relationship between Harper and the Senate.

In his farewell speech last June, Segal advised his fellow senators to “balance the partisan and other pressure” on the Senate from “the other place ” – the House of Commons. He told his colleagues they could take comfort from “the recent Supreme Court ruling on what is the legitimate constitutional approach to Senate reform,” a direct swipe at Harper’s plans for bringing unilateral change to the Red Chamber.

Segal warned that the Senate, which had been trampled by the PMO in the Wright/Duffy Affair, had to be independent. Segal also advised his colleagues “to champion the central and indisputable importance of the rule of law, due process and presumption of innocence as cornerstones of our democratic way of life, whatever dark forces elsewhere – in government, opposition, the police or the media – might seek to dictate or impose upon us.”

The “dark forces” reference in Segal’s speech wasn’t well covered at the time. But it was an obvious reference to the heavy-handed manipulations of the PMO — from interfering in an independent Senate audit and forcing changes to a Senate report, to suspending members of the Senate without a hearing.

But the “dark forces” Segal referred to do not work as well when the forum moves from the political arena to a criminal court. In the political arena, one can scrape by with concocted narratives and scenarios without being held to account by the facts. In criminal court, there is no such thing as telling the scenario, the whole scenario, and nothing but the scenario. Departure from the facts, no matter how important the person who is doing the departing, carries consequences. It’s called perjury.

The one thing Harper hates more than Justin Trudeau is evidence. And that is exactly what will be on offer once Duffy’s criminal trial begins. Depending on what is contained in those 800 emails between Janice Payne, Duffy’s employment lawyer, and Benjamin Perrin, then the PM’s in-house legal counsel, Duffy’s critics may discover that they were going after the monkey when it was really the organ grinder who was to blame all along.

The main questions before the public from the beginning of Duffy’s troubles were these: did he cheat on his housing/living allowance? Was he or was he not entitled under Senate rules to designate his “home” in Prince Edward Island as his primary residence, and to make housing claims for his “home” in Ottawa, where everyone knows he has lived for the last thirty years?

Here’s what the PM’s chief of staff of the day said about that issue back in 2012 when the story of Duffy’s housing allowance claims for his Ottawa home first broke: “I am told that you have complied with all the applicable rules and that there would be several Senators with similar arrangements…” said Nigel Wright.

Even the Deloitte auditors called in by the Senate did not condemn Duffy’s housing allowance as improper or against the rules.

As this complicated story developed from that December day in 2012, things got murkier. While Nigel Wright clearly didn’t believe Duffy was breaking Senate rules or the law, he did think it was immoral to be claiming housing/living expenses on what was in reality Duffy’s principle residence in Ottawa.

The prime minister’s focus, as always, was political. He wanted Duffy to repay his housing allowance not because these claims had violated Senate rules, but because Harper’s political base would never be able to understand Duffy’s housing expenses any more than it could Bev Oda’s $16 dollar a glass orange juice.

As for Duffy, he honestly didn’t think he owed the money so couldn’t agree to a repayment – at least not at first.

Which led to a peculiar stand-off that morphed into a bizarre denouement. A sitting Canadian senator claims he was pressured into paying back money he didn’t believe he owed with funds that were presented to him as a gift by a man who acknowledged he had not broken the rules.

Perhaps that’s why when Duffy was charged criminally after a 16-month RCMP investigation, his lawyer Donald Bayne was relieved that the matter would finally be judged in an impartial forum where the facts ruled:

“I am sure that I am not the only Canadian who will now wonder openly, how what was not a crime or bribe when Nigel Wright paid it on his own initiative, became however mysteriously, a crime or bribe when received by Mr. Duffy…The evidence will show that Sen. Duffy did not want to participate in Nigel Wright’s and the PMO’s repayment scenario, which they concocted for purely political purposes. There is much that is offensive here. But the evidence will show that it did not emanate from Sen.Duffy.”

Perhaps it all emanated from the dark forces Hugh Segal warned of in his farewell speech last June. If so, April could prove the cruellest month for a prime minister who has so far been allowed to be the judge in his own cause.

Not this time.

—Michael Harris is a writer, journalist, and documentary filmmaker. He was awarded a Doctor of Laws for his “unceasing pursuit of justice for the less fortunate among us.” His nine books include Justice Denied, Unholy Orders, Rare ambition, Lament for an Ocean, and Con Game. His work has sparked four commissions of inquiry, and three of his books have been made into movies. His new book on the Harper majority government, Party of One, is a number one best-seller.

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